Does the 5th amendment right to remain silent protecting a suspect from compelled self-incrimination by law enforcement extend outside of the custodial setting? Furthermore, does a suspect not currently or in custody and has not received any Miranda warnings have a right not to speak?

In 1992, police came to suspect Genovevo Salinas of murdering two men, Juan and Hector Garza. During a consensual search of Salinas’s parents’ home, where he too resided, Salinas’s father handed over a shotgun to the police, and Salinas himself voluntarily accompanied the officers to the police station for an interview. Police did not read Salinas any Miranda warnings, nor were they required to do so, as he was not in custody. For almost an hour, Salinas answered a series of questions that the police posed. At one point, however, Salinas became silent. Police had just asked him “if the shotgun [his father had given them] would match the shells recovered at the scene of the murder.” In response to this question, Salinas looked down and said nothing.

The police subsequently received a ballistics report that did identify a match between the casings from the murder scene and the shotgun from Salinas’s house. The State subsequently charged Salinas with two counts of murder. Police were unable to find Salinas to arrest and bring him to trial, however, for another fifteen years. The trial he did have then ended in a mis-trial, and a second prosecution began.

In closing argument during Salinas’s second trial, the prosecution emphasized the following to the jury:

“The police officer testified that he wouldn’t answer that question. . . . You know, if you asked somebody—there is a murder in New York City, is your gun going to match up the murder in New York City? Is your DNA going to be on that body or that person’s fingernails? Is [sic] your fingerprints going to be on that body? You are going to say no. An innocent person is going to say: What are you talking about? I didn’t do that. I wasn’t there. He didn’t respond that way. He didn’t say: No, it’s not going to match up. It’s my shotgun. It’s been in our house. What are you talking about? He wouldn’t answer that question.”
At the end of the second trial, the jury came back with a guilty verdict, and Salinas appealed. He claimed on appeal that the prosecution’s comment on the defendant’s silence unconstitutionally penalized Salinas’s exercise of his Fifth Amendment right to remain silent.

In Miranda v. Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel. If law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial.

Two of the most important Miranda rights and warnings that one has are (1) the right to remain silent and (2) the warning that anything one does say can and will be used against one
In Berghuis v. Thompkins, the Supreme Court declared that if one has been read one’s Miranda rights (and one has indicated one understands one’s rights and has not already waived them), must expressly state during or before an interrogation begins that one wishes to remain silent and forego speaking to police for protection against self-incrimination to apply. If one speaks to police about the incident before invoking one’s Miranda right to remain silent, or afterwards at any point during the interrogation or detention, the words one speaks may be used against one if one has not stated one does not want to speak to police. The dissenting opinion pointed out that the majority agrees that words must be spoken to either express one’s silence or incriminate oneself, suggesting that only words can be used to incriminate, rather than mere silence
Expressly asking the jury to draw a negative insinuation imposes an unconstitutional burden on one’s exercise of one’s right to remain silent and thereby pressures one to take the witness stand, notwithstanding one’s technical right not to.

One has one choice of relief in a situation like this. One charged with a crime of this nature should contact an experienced Jacksonville criminal defense attorney to fight the case and ensure one’s 5th and 6th amendment rights and defenses against self-incrimination are known and protected.

The Forbess Law Firm has been aiding clients who face criminal charges in Jacksonville for years and are here to provide aggressive criminal defense to anyone accused of a crime. If you or a loved one require a Jacksonville criminal defense lawyer, contact our firm today. We are available through our website or by calling us at 904-634-0900.